Justice Ruth Bader Ginsburg should retire from the Supreme Court after the completion of the current term in June. She turned 81 on Saturday and by all accounts she is healthy and physically and mentally able to continue. But only by resigning this summer can she ensure that a Democratic president will be able to choose a successor who shares her views and values.

A great deal turns on who picks Ginsburg’s successor. There are, for example, four likely votes to overturn Roe vs. Wade on the current court: Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr. If a Republican president selects Ginsburg’s replacement, that justice easily could be the fifth vote needed to allow the government to prohibit all abortions. On many cases — including ones involving environmental law, healthcare, gay marriage, the death penalty and the rights of those in Guantanamo — the four liberal justices have joined with Justice Anthony M. Kennedy for a progressive result.

But if a conservative had been occupying Ginsburg’s seat when the court heard those cases, the rulings might well have been very different, and if a conservative takes her seat when she leaves, they might not survive.

There likely will be many calls, publicly and privately, for Justice Ginsburg to resign before President Obama leaves the White House to prevent the risk of a Republican being able to appoint her successor. But simply leaving before the next election isn’t enough. If Ginsburg waits until 2016 to announce her retirement, there is a real chance that Republicans would delay the confirmation process to block an outgoing president from being able to fill a vacancy on the Supreme Court. In fact, the process for confirming nominees for judicial vacancies usually largely shuts down the summer before a presidential election.

Moreover, there is a distinct possibility that Democrats will not keep the Senate in the November 2014 elections. The current Senate has 53 Democrats, two independents who vote with the Democrats and 45 Republicans. But in the November 2014 elections, Republicans have a far greater likelihood of gaining seats in the Senate than the Democrats. One recent study identified nine seats held by Democrats that could be won by Republicans, but only two seats occupied by Republicans that might be taken by Democrats.

Chemerinsky isn’t the first person on the left to make this kind of public appeal to Justice Ginsburg, of course. Indeed, a quick search of the archives here at OTB reveals posts I’ve written about similar arguments, and pronouncements by Ginsburg that she had no intention to retire before 2015 at the earliest, on several occasions (see here, here, here, and here for coverage just in the past four years. Indeed, several people on the left side of the political spectrum argued that Ginsburg should resign before the 2012 elections when it appeared that there was at least a chance that a Republican challenger could defeat the President’s bid for re-election. That didn’t happen, of course, but the arguments regarding Ginsburg, and to a lesser extent Stephen Breyer who will turn 76 this summer, have continued and are likely to become stronger as we get closer to both the 2014 elections and the end of President Obama’s term.

On some level, of course, Cherminsky has a point. There is indeed a strong likelihood that the GOP will gain control of the Senate in this year’s election. If that happens, the President’s ability to get a Supreme Court nominee, or indeed any type of nominee, confirmed would become far more difficult. It wouldn’t necessarily be impossible, after all Ronald Reagan managed to get Anthony Kennedy confirmed by a Democratic Senate. However, that didn’t happen easily. Reagan’s first pick for the seat, Robert Bork, was rejected by the Senate in the most politically contentious Supreme Court nomination that the nation had ever seen, and his second pick, Appeals Court Judge Douglas Ginsburg, had to step aside after revelations came out that he smoked marijuana with students while a Law Professor. Kennedy was very much a compromise pick, which just makes the fact that he is likely to go down as the most important Supreme Court Justice of the past 25 years all the more ironic. Barack Obama would not have the political clout in 2015 after a GOP Senate takeover that Reagan retained in 1987 notwithstanding the results of the 1986 elections and Senate Republicans would be unlikely to be willing to cut him much slack on a SCOTUS nomination. Obama likely would be able to get someone confirmed, but it would end up being someone far more centrist than Ginsburg.

Chemerinsky is incorrect, though, in his assumption that a nomination before the 2014 elections would be any easier for the President. For one thing, the recent changes to the filibuster rule do not apply to Supreme Court nominations and it seems unlikely that Harry Reid would be able to garner the 50 votes he needs in his caucus to end the filibuster for SCOTUS nominees. Given that and the fact that the Senate is not going to be in session very much after August, it would be relatively easy for Republicans to delay any nomination until after the election. Democrats facing tough re-election fights are likely to join them in the delay if only to avoid having to go on the record prior to Election Day. So, there doesn’t seem to be much political wisdom to Ginsburg resigning now as opposed to waiting until after President Obama is out of office as she appears inclined to do.

It’s unlikely that Chemerinsky’s public appeal, which some might consider a bit of a disrespectful way to mark someone’s birthday, is going to have any real impact on Ginsburg’s career plans. As noted above, she had made clear in the past that she has no plans to retire in the near future and has hinted more than once that she would like to say in office at least as long as Justice Louis Brandies, whom she has often cited as a personal hero. To meet the length of Brandeis’s term, Ginsburg would have to stay in office at least until the end of the term that begins next October and ends next June. There’s no guarantee that Ginsburg would resign then, of course, and indeed she has stated on several occasions that she would likely stay in office through the end of President Obama’s term. In any case, though, the idea that she is going to be persuaded by an Op-Ed or by any other public appeal seems unlikely. Like pretty much every other Supreme Court Justice before her, Ginsburg will leave on her own terms, absent some kind of debilitating medical condition that one hopes doesn’t become an issue, regardless of what her ideological allies might think about it.

About Doug MataconisDoug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway.
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Basically, I think Chemerinsky is right – tactically it makes sense for Ginsburg to step down now and let Obama nominate the next Justice. It would be a bruising fight, but one that Democrats should not shy away from.

@Trumwill: Out of curiosity, what gives you the impression that the Senate won’t go GOP this year? All the momentum is on the GOP’s side, and there’s practically nothing the Dems seem willing to do to stop it.

In fact, if you’re a betting man, I’m willing to lay down a large sum that the GOP will capture the Senate this year. Up for it?

There’s no doubt that on a matter of raw realpolitik as well as simple justice both Ginburg and Breyer should have retired to make way for younger Justices. After all, Ginburg has now been there for 20 years: Breyer for almost as long. It would no disgrace for both of them to stepdown to give a younger generation a chance. I’m for a 15 or 20 year term limit for Supreme Court Justices anyway.

Like pretty much every other Supreme Court Justice before her, Ginsburg will leave on her own terms, absent some kind of debilitating medical condition that one hopes doesn’t become an issue, regardless of what her ideological allies might think about it.

Given her medical history, the odds of this happening overthe next three years are uncomfortably high. I would like her to have a happy and healthy next three years or more, but Cancer doesn’t give a damn about what I like or what anyone thinks is appropriate.

@Trumwill: As I alluded to @gVOR08: in ’16 the large majority of seats up for election are Republican so there are excellent odds of a Dem swing, especially with high turnout in a prez year and if Hillary has coattails. This year, I’m afraid the arithmetic is the other way and I have to reluctantly agree with @Peacewood: It’d make my whole week if you could talk me into believing the Dems will hold.

There’s too much contingency and phrenology here. It’s clear though that Justice Ginsberg is happy with being on the Court. Good for her. Didn’t Justice O’Connor express deep regrets about her resignation?

One of my partners saw her in court earlier this month and remarked how incredibly frail she looked. Frail in body is not necessarily frail in mind though.

Kennedy was very much a compromise pick, . . . [and] he is likely to go down as the most important Supreme Court Justice of the past 25 years

I think this is probably true, and if it is, it challenges the weight to be accorded this:

Obama likely would be able to get someone confirmed, but it would end up being someone far more centrist than Ginsburg.

Ginsburg, like Thomas, strike me as the least influential voices on the Court because they are furthest from the center. Obama would be fine with a liberal centrist; the only concern here is a centrist might be conservative in some areas and there is less margin for error.

This ain’t Happy Fairy Gum Drop Land. Whether a Judge is liberal or conservative is the biggest determinantof how a Justice will vote on the big issues. That’s just a fact, like 2+2=4.

On issues like SSM and voting rights, it’s going to matter a hell of a lot whether there are five, four or fewer liberal Justices on the Court, and anyone who doubts that is a d@mned fool.
The conservatives have played this game a lot better than liberals. They have their farm system for churning out conservative justices (the Federalist Society) and they have been relentless about seizing control of the federal bench asnd maintaining control of crucial courts like the Federal District Court of Appeals in DC. The Obama Administration have themselves been quite lackadaisical about this until lately. As usual, the Republicans have been playing chess while the Democrats are playing checkers.

If we consider that 34 Supreme Court Justices (including eight Chief Justices) have died in office I would call it a Hospice.
This will all be remedied when a Second Constitutional Convention is Called to Quorum for the sole purpose of setting a mandatory retirement age for Justices of the Supreme Court…Well maybe after the Convention gets rid of the IRS, the entire Federal Buracracy, Establishes a State Religion, sets Term Limits for all Federal, State and Local Legislative Bodies, mandates Compulsory Voting for offices from US Premier in Chief to Village Dogcatcher, abandons Civilian Control of the Military, Limits Habeas Corpus to apply only to White Christian males, and chains women to the kitchen sink.
Some folks say it ain’t so. They claim: “There is absolutely no historical precedent for a runaway convention.”
Except for the first one of course.

@stonetools: If the conservatives are better at this than the liberals, why the Republican-nominated justices split and the Democratic-nominated justices vote as a bloc? But that doesn’t address my concern anyway, which is I don’t like it being played like a game.

The delegates to the Convention that produced Our Great Charter had no authority whatsoever to create that document. They were there to revamp the Articles of Confederation.
They were bound to secrecy. They were allowed to change their minds about issues without fear of Fox News or CNN or The Gang of Green Network up their asses in an instant.
Why anyone thinks a convention called by US Congress at the behest of the States would be free of such scrutiny or somehow wiser than any other political gathering today is beyond me.
Will members of the Federal Legislature be forbidden from being delegates to a Convention called by the Federal Congress on the Application of the Legislatures of two thirds of the several States,.. Nobody knows because it is not addressed in the current document.

@gVOR08: “Unlikely” probably wasn’t the right word, but I would bet a couple hundred on the Democrats at the moment, if I were making a bet. The problem with the sorts of roundups like the one Doug links to is that it casts such a wide net to make it sound like only few of a lot need to be taken, and are often fixed on Republicans winning red states because they’re red states and finding ways that they can win blue states despite being blue states. The GOP pick-ups are South Dakota and West Virginia. Probably Arkansas. I actually think the Dems will hold Montana and Alaska where they vote for the right Democrats and Walsh and Begich are the right Democrats. They’ll certainly hold Iowa, New Hampshire, and Virginia. Michigan is a likely hold, as is Colorado when things shake out. That leaves North Carolina, where Democrats are fired up, and Louisiana where Landrieu always seems to pull through (even in 2002). Republicans need to win both, hold Georgia and Kentucky, and pick up one of the states I have in the D column.

Can the Republicans pick up the six? Sure. But a lot of the speculation seems to rest on assumptions of a tidal wave like 2010 and 2006. I’m just not seeing it. I’m seeing a race-by-race election where Republicans have a good slate of states but not, in my view, a tidal wave. So they can, but I don’t think it’s extremely likely that they will. Maybe it’s 50/50 like Stonetools says. I’d put the odds somewhere around 40 or below.

@al-Ameda: If these political chessboard moves are made solely based on possible election results and ramifications, let’s go to a system of electing these justices. I have always been suspect of electing someone for life. Let the people decide.

@trumwill: Couple of hundred, eh? Hmm….tell you what. What geographic area of the country do you hail from? I’m from North Carolina, and I’m willing to send you some local specialty (BBQ, perhaps?) if I’m wrong and the Dems hold.

As long as you’re willing to do the same from wherever you’re from, if you’re wrong!

For one thing, Ginsburg’s health is not good, and so, tactically, stepping down would enable Obama to appoint a like-minded justice. That is a sexist observation?

Second, Justice Thomas should have been removed from the court after failing – for many years – to disclose his wife’s well-compensated affiliation with the Heritage Fdn on required federal disclosure forms. That’s racist?

@al-Ameda: If these political chessboard moves are made solely based on possible election results and ramifications, let’s go to a system of electing these justices. I have always been suspect of electing someone for life. Let the people decide.

(1) Did I say that these moves were solely based on possible election results? No, but let’s not kid ourselves, for about a century or so, many of these moves have been made on that basis.
(2) Let the people elect Supreme Court Justices? Why would we want to do that? Do we really want the same angry uninformed people who elect folks like Michele Bachmann, Ted Yoho, Louie Gohmert, Steve King, Sarah Palin and Steve Stockman to elect our Supreme Court Justices?

@trumwill: Pretty much agreed. Joe Biden’s Senate schedule will probably be brisk as he will likely be called upon to break ties.

The main problem with the GOP is the complete and utter vacuum posing as policy proposals that earn majority support. After one has denigrated the President for the umpty-squath time, at some point, one has to offer an alternative.

Getting voters out to vote on such “alternatives” is the challenge. May the digital age please help with that.

@al-Ameda: Do you really think that all the doofs are on one side, or are you just saying that to make yourself sound…I dunno, unintelligent, I guess?

Did I say that the ‘doofs’ were only on one side? I don’t tink that I did. These days, comparatively, empirical evidence seems to show that a disproportionate number of Republicans are out-to-lunch. That seems to me to be an intelligent observation.

Pretty much, yeah. Statistically, there’s only a 2% chance that you’d choose 6 Republicans out of 6 if both parties were equally doofy. There’s only a 50/50 chance that you’d choose 6 Republicans out of 6 if 89% of the examples of bad elected officials were Republican. Your inability to mention a Democratic or Independent doof on six tries suggests that you see all the problems, not just a disproportion of the problems, in one party.

There’s only a 50/50 chance that you’d choose 6 Republicans out of 6 if 89% of the examples of bad elected officials were Republican.

50/50? Well, there’s a 0.000002 chance that I’d name 6 Democrats, and a 0.67 chance that I’d name 5 Republicans and 1 Democrat. So, statistically I was in a very reasonable place by naming 6 Republicans.

Again, I named Michele Bachmann, Ted Yoho, Louie Gohmert, Steve King, Sarah Palin and Steve Stockman because they came to mind so easily. At the moment I cannot think of Democrats who are as prominent with their nutty public comments as those aforementioned Republicans. If you want to suggest a “doofy” Democrat who has recently made crazed comments, feel free, I won’t be offended. However, the numbers speak for themselves, Republicans have more nuts in Congress than Democrats.